01/04/2018 Richard B Willner, DPM
The National Practitioner Data Bank (NPDB)
The National Practitioner Data Bank (NPDB) is a
20-year experiment created by an act of Congress
along with the Health Care Quality Improvement
Act of 1986 (HCQIA). The experiment has failed.
It is time to abolish this agency. The NPDB is a
blacklist reminiscent of the McCarthy blacklist
of the 50s. Instead of targeting the Red Menace,
or Communists, the target of this blacklist of
the White Menace: "Bad Doctors."
The problem is that too many good doctors' names
are submitted to this list. And it is
disturbingly easy to do. The perception is, if a
doctor is included on this list, they must be a
bad doctor, otherwise, why are they on the list?
The consequences of a listing are dire. As a
result of a listing in this "data bank", many
doctors become unemployed and unemployable. For
surgeons who must use a hospital Operating Room,
the "databank" is a permanent as a tattoo.
Clearly, a doctor has a "liberty interest" in his
professional career and reputation. Also, plenty
of hard work goes into becoming a doctor. A
listing by this agency irreparably damages a
doctor's career and his reputation. A listing
thus leads to a loss of liberty. Yet in the
United States of America, we have this document
called the Constitution. So, in examining the
National Practitioner Data Bank, are doctors
being deprived of liberty without due process of
law?
When Congress created the NPDB, they created a
highly unique agency. This is the only federal
agency that has delegated publication power to
corporations, corporations that have been granted
the authority to publish whatever they please on
federal stationary.
Not only does the federal government allow them
to publish, they assist them with the
distribution of the publication, and they also
grant them immunity for what they publish. These
publishers, private corporations, have thus been
released from the confines of laws of libel. They
can publish whatever they please without fear of
reprisal and the federal government protects them
behind a veil of immunity. This means that the
victims of defamation by said corporations have
no recourse against those corporations for
various and sundry torts such as defamation.
Consider the scenario where an entry is made to
the NPDB that is simply flat out defamation. I
estimate that the entire process takes less than
one hour. What recourse does the doctor have to
combat this? In the real world, in the event of
defamation, the doctor could sue for defamation
to recover any resulting damages. When a
defamatory statement is laundered thru the NPDB,
there is no recourse. Any lawsuits will be
dismissed under the veil of immunity defense. The
doctor can then proceed with a time consuming and
arduous formal "secretarial review" to obtain
redress. That is assuming he, or his lawyer, has
heard of this. Chances are, he has not. One
doctor fought a defamatory listing for eight
years before someone informed him of the
secretarial review option. He had never heard of
it. No lawyer advised him of it.
And the "secretarial review" option is not a de
novo review of the facts of the case. The NPDB
does not do that. In fact, no agency does. The
chances of prevailing are remote. The NPDB is
designed as the "roach motel" of medicine.
Statements can be entered freely and rarely come
out.
In addition to release of liability for
defamation. Congress also released these private
corporations from fear of an antitrust suit. But
it is only reasonable that by granting such
immunity, the federal government must assume
responsibility for the wrongful action of these
private corporations, let the victims of a
wrongful publication be denied the equal
protection of the law. And isn't such protection
also part of our Constitution?
Upon submission, these corporate publications are
distributed on federal letterhead. There is no
scrutiny by the federal government to verify the
accuracy of these corporate publications. There
is no oversight. They publish and thus endorse
what is mailed to them in a government
publication originated from Washington DC.
The publications are distributed widely. First,
they are sent to the doctor's employer, his
licensing board, any secondary licensing agency,
their certification board and every hospital he
works at, or will work at in the future. The item
is then sent to the DEA, the agency that issues
the prescription powers.
With each publication, the doctor is inevitably
subjected to a new "adverse action" which
generations secondary "adverse action reports".
Other states he is licensed in will issue their
own investigation and still another Data Bank.
This is the multiplier effect, where one entry
becomes 5 entries. Clearly there is a double
jeopardy issue here.
And then there is a due process issue. If a
hospital is publishing so called "data", how
exactly was such "data" arrived at? The reference
to a data bank entry as "data" would suggest some
sort of mathematical accuracy to the publication.
Yet who guarantees it's accuracy? Does false
information become data upon typing it into a
computerized "data bank"? When it comes to
computer data entry, garbage in equals garbage
out.
There are very serious consequences to a data
bank entry. If the doctor loses his job, he loses
his liberty. Is there any guarantee this loss of
liberty if accompanied by the requisite "due
process of law" that is guaranteed by the US
Constitution? The answer to this question is a
resounding no.. Congress did not mandate these
hospitals comply with Constitutional due process
standards before they submit what amounts to
corporate verdicts of corporate trials. As such a
trial, no appeal is allowed, no discovery is
allowed and no confrontation is mandated.
Congress can only do what they are authorized to
do . All congressional authority comes from the
Constitution. The Constitution guarantees the
right to constitutional due process before a man
is deprived of his liberty. A listing leads to a
loss of liberty, yet there is no guarantee of due
process.
And that is where Congress failed. They failed to
abide by the supreme law of the land. Congress
created an agency that is in fundamental
violation of the rules they are obligated to
follow. Thus the NPDB must fail, as the McCarthy
blacklist failed, lest we all lose more good
doctors. That that is bad for all of us.
Richard B Willner, DPM, Kenner, LA
